M.H. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] IEHC 560 |
| Court | High Court |
| Docket Number | [2017 No. 439 JR] |
| Date | 31 July 2018 |
[2018] IEHC 560
THE HIGH COURT
JUDICIAL REVIEW
MacGrath J.
[2017 No. 439 JR]
Judicial review – Fair trial – Indecent assault – Applicant seeking an order of prohibition and/or an injunction restraining the respondent from proceeding with his trial – Whether the applicant could receive a fair trial
Facts: The applicant applied to the High Court for judicial review seeking an order of prohibition and/or an injunction restraining the respondent, the DPP, from proceeding with his trial in respect of four counts of indecent assault, which assaults were alleged to have occurred in 1972 and in 1973, and from prosecuting him in respect of those charges. The applicant identified the following grounds upon which he contended that he could not receive a fair trial: (i) delay and prosecutorial delay; (ii) the absence of evidence and witnesses; (iii) health issues; and (iv) omnibus considerations and the risk of an unfair trial.
Held by the Court that, in all the circumstances, the applicant had not discharged the onus of proof of establishing any particular prejudice which could not be addressed by the trial judge at the hearing, and that on the application of the omnibus principle or otherwise, this was not an exceptional case which required intervention by the Court to prohibit the further prosecution of the case.
The Court held that it would refuse the relief sought.
Application refused.
The applicant was born on 21st September, 1943. He brings this application for judicial review seeking an order of prohibition and/or an injunction restraining the respondent from proceeding with his trial in respect of four counts of indecent assault, which assaults are alleged to have occurred in 1972 and in 1973, and from prosecuting him in respect of these charges.
On 17th August, 2015 and again on 18th January, 2016, the complainant made statements to An Garda Síochána that the applicant, who was the complainant's sports coach, indecently assaulted him on four separate occasions in 1972 and 1973 when the complainant was aged between 9 and 11. The assaults are alleged to have occurred while they were alone in the clubhouse of a sports club. Following a garda investigation, the applicant was charged. He is being prosecuted on indictment and the charges are pending before the Circuit Criminal Court.
By Order of Noonan J. dated 29th May, 2017, the applicant was granted leave to apply by way of judicial review for, inter alia, an injunction restraining the respondent from prosecuting him, an order prohibiting the respondent from proceeding with the trial, and for a stay on further prosecution of the case pending the outcome of this application.
The applicant identifies the following grounds upon which he contends that he cannot receive a fair trial:-
Delay and prosecutorial delay
It is pleaded and submitted that the lapse of time of 43 years, the delay in the investigation of the complaints and in the bringing of proceedings is of such prejudice to the applicant that he will not receive a fair trial. It is argued that he is prejudiced by prosecutorial delay between the dates of the taking of the applicant's statements in August, 2015 and January, 2016, and the date of the return for trial on 18th January, 2017. Mr. Donal Daly, solicitor for the applicant, in an affidavit sworn by him on 24th May, 2017 grounding this application, avers that apart from the delay of 43 years in making the complaint, there was a further delay in the return for trial by the respondent and that the applicant is thereby prejudiced.
Mr. Daly avers that several potential witnesses are no longer available. The alleged assaults happened over 43 years ago and since then, many people who knew the applicant and worked as sports coaches at that time have died or have left the jurisdiction and are therefore unable to be potential witnesses for the applicant. He lists the names of such witnesses including the founder of the club, a committee member of the club, the president of the club, a man and a woman who were aware of the applicant's coaching career with the club, two lodge caretakers, a bus driver for the club, a club helper and a club fundraiser. It is urged that their absence will undermine the right to a fair trial. Other than the evidence of the garda witnesses who interviewed him, the evidence against the applicant is solely that of the complainant. There are no other available witnesses who were there at the time the offences allegedly took place.
Absence of evidence and witnesses
The building where the indecent assaults are alleged to have occurred no longer exists. It has been demolished. The applicant contends that he is now unable to engage an engineer to assist his defence by carrying out an examination and inspection of the building. It is argued that such evidence would assist him in his defence and in testing or challenging the veracity and accuracy of the complainant's description of the location where the assaults are alleged to have taken place and thus the complainant's account of the alleged offences. He also argues that the prosecution in a criminal trial is obliged to preserve and make available to the defence all evidence relevant to the accused's guilt or innocence, otherwise the accused, as in this instance, is denied his right to prepare his defence and/or challenge or rebut the prosecution evidence. He asserts that the inspection of the building is relevant to the applicant's case as the complainant is very descriptive about the part of the building where the assaults allegedly occurred. Mr. Daly contends that the applicant is at a serious disadvantage in preparing his case as he is no longer in a position to retain an engineer to provide photos or prepare a map of the building to assist him in appraising matters from his own viewpoint.
Health issues
It is contended that the applicant suffers from a number of health issues which will render his trial unfair. The applicant is now 74, his health is deteriorating, and it is alleged that he suffers from memory loss. In support of this averment, Mr. Daly exhibits a medical report prepared by Dr. Morgan dated 10th February, 2017, a radiological report dated 24th January, 2017 and a report prepared by Dr. O'Regan, a consultant psychiatrist, on 3rd May, 2017.
Dr. Morgan, in his report, describes the applicant as being depressed, suffering a loss of self-esteem and being pessimistic. The applicant also reported to Dr. Morgan that in recent years he had experienced memory loss. He forgets meetings, loses track of time and ruminates over matters such as whether the electric light or oven have been left on. He reported being compromised in the daily management of his house, that his sleep pattern has been affected and that he requires constant reassurance. His wife died in 2012. While he lives alone, his family is supportive.
The applicant also has some residual physical impairment following a severe motorcycle accident in the 1960s. In addition, he underwent bypass surgery in 2011, suffers from hypertension and is a diabetic. He requires medication for these conditions.
On mental state examination he was found to be depressed and Dr. Morgan thought the applicant had cognitive dysfunction. Dr. Morgan records apparent memory loss and reports that the applicant confabulates. The applicant's cognitive dysfunction indicated possible vascular cerebral changes. A brain scan showed vascular disease and changes including, inter alia, moderate small vessel ischaemic disease involving both cerebral hemispheres suggestive of vascular dementia. Dr. Morgan thought the applicant may have difficulty in recalling past events. He suggested that a report be obtained from an old age psychiatrist, to whom he referred the applicant.
A comprehensive report was prepared on 3rd May, 2017, by Dr. O'Regan, a consultant psychiatrist with the Older Adult Mental Health Team. She reviewed the applicant on two occasions, 7th March, 2017 and 10th April, 2017. He was also seen by a community mental health nurse and psychologist. In her report, Dr. O'Regan recounts that the reason for referral was his memory loss, forgetfulness, the loss of track of time and that he ruminated. He reported to her that his memory had been problematic for at least two years, that he was very worried about the impending court case and that he had no memory of perpetrating such acts. He denied the allegations. On initial assessment in March, 2017, Dr. O'Regan reported that the applicant's scores indicated cognitive impairment. She placed him on trial antidepressants and referred him to a clinical nurse specialist and a psychologist for a neuropsychological assessment and for anxiety management.
On further review on 10th April, 2017, the applicant continued to be anxious and was mildly depressed. Again he denied the allegations. Dr. O'Regan reported that the applicant was able to provide a level of detail regarding the charges as he understood them and ‘ appeared to have been able to retain that information’. She opined that he had the ability to communicate his needs and to instruct his solicitor.
In April, 2017, Dr. O'Regan conducted a further cognitive assessment, with scores suggestive of early dementia. She referred the applicant to a clinical nurse specialist to review him at home and to monitor his response to treatment. His antidepressant medication was increased. On review by the clinical nurse specialist on 25th April, 2017 there had been a clear improvement in his mood and anxiety symptoms. Nevertheless the applicant continued to display evidence of memory impairment.
Dr. O'Regan concluded that, given the applicant's presentation, his...
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